For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The Appellate Division affirmed the defendant's conviction of robbery (N.J.S. 2A:141-1) while armed (N.J.S. 2A:151-5). He appealed to this Court under R.R. 1:2-1(a).
On October 2, 1959 there was a holdup in Solomon Facher's tavern on Ferry Street, in Newark. At about 1:10 A.M., Facher and three patrons, John Meehan, Chris Eman and Vincent Czerwinski, were the only ones in the tavern when two men came in, drew their guns, and took the contents of the cash register and a metal box containing approximately $2,000 in cash and $3,000 in checks. As they backed out of the tavern they warned that if anyone stuck his head out he would have it "blown off." Facher and Meehan followed them out, were fired on, and saw them ride off in a car.
At the trial, Facher, Meehan and Czerwinski testified that the defendant Thomas J. Hodgson was one of the two holdup men. They had identified him in a police lineup several days after the event and their identification testimony at the trial was clear and unequivocal. In addition, the State produced testimony by Jon Catenacci who, after having given a statement that he and the defendant were the holdup men, then gave some testimony to the contrary, and finally testified that he and the defendant, along with a third man, Robert R. Ramberger who was the driver of the getaway car, had perpetrated the crime. Two guns introduced by the State in evidence were identified by Catenacci as the guns used by him and the defendant in the course of their holdup. Ramberger
also testified, first denying the crime but ultimately supporting Catenacci's final testimony that Ramberger was in the getaway car while he and the defendant were committing the holdup in the tavern. The State introduced a signed statement by the defendant admitting and describing his participation in the crime. The trial judge found this statement to have been a voluntary one and then submitted it to the jury for consideration along with the other evidence in the case. The defendant testified that the statement was not given voluntarily, that he was not guilty, and that he was at home at the time of the crime. His mother and a friend of hers gave testimony in support of his assertion that he was at home. The jury found the defendant guilty as charged and he was sentenced to a prison term of 10-12 years for the robbery (N.J.S. 2A:141-1) and a consecutive term of 2-3 years because the robbery was committed while he was armed (N.J.S. 2A:151-5).
The defendant contends his arrest was illegal and he was not promptly brought before a magistrate, and that, as a result, the identification testimony by the various witnesses, along with his confession and other evidence, should have been suppressed. This contention was not raised at the trial; indeed at no point during the trial was there any assertion that his arrest was illegal or that his appearance before a magistrate was delayed unduly. The testimony disclosed that the victims of the robbery had described the holdup men to the police, that Catenacci was placed under arrest on October 5, 1959 and that on October 6th at 1:30 A.M. the defendant was arrested at his home. He was immediately taken to East Orange Police Headquarters, at 2:00 A.M. he was taken to Newark Police Headquarters, and he was then transferred to the First Precinct in Newark where he slept and ate. After breakfast on the morning of October 6th, he was returned to Newark Police Headquarters, was placed in a police lineup, and was identified by Facher, Meehan and Czerwinski as one of the holdup men. Later during the same day he was questioned and signed a confession. On October 8th he was
brought before a local magistrate for preliminary examination. See R.R. 3:2-3.
On the record before us it cannot be said that the arrest of the defendant was illegal. That the officers, at the time of the arrest, told the defendant that he was being arrested "on suspicion," did not indicate that they lacked probable cause for believing that the defendant was a participant in the crime. See State v. Burnett, 42 N.J. 377, 386-388 (1964); Ralph v. Pepersack, 335 F.2d 128, 132-135 (4 Cir. 1964). They had descriptions of the holdup men, they had already picked up Catenacci who was a friend of the defendant and was on probation following his conviction of breaking and entering, and they then proceeded to arrest the defendant. The Court of Appeals of Maryland recently expressed the view that an arrest under comparable circumstances was legal. See Wilkins v. State, Md., 205 A. 2 d 593 (Ct. App. 1964); cf. Ralph v. Pepersack, supra, 335 F.2d, at pp. 132-133; but cf. Beck v. State of Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2 d 142 (1964). In any event, even if the defendant's original arrest was illegal, it would not necessarily follow that the evidence of his identification and the other evidence now complained about would be inadmissible. See State v. Jackson, 43 N.J. 148, 168-170 (1964).
In Jackson the defendant contended that his arrest was illegal and that therefore the confession obtained from him after his arrest was inadmissible per se. He relied upon Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2 d 441 (1963), where the Supreme Court dealt with a simultaneous confession which was part and parcel of an unlawful entry and unauthorized arrest. Many state and lower federal court decisions since Wong Sun have rejected the notion that it declared all evidence obtained after illegal arrest to be inadmissible per se; some of them may be found cited in our opinion in Jackson (43 N.J., at p. 169); see also United States v. McGavic, 337 F.2d 317 (6 Cir. 1964), petition for cert. filed 33 U.S.L. Week 3254 (Jan. 26, 1965) (No. 823), and Rogers v. United States, 330 F.2d 535 (5 Cir. 1964).
In McGavic, the court found that statements made 2 1/2 hours after the illegal arrest were not contaminated (337 F.2d, at pp. 318-319) and in Rogers, the court found that a statement made 3 hours after the arrest was not so bound up with it ...